Theatre Network Society (TN) sought a Summary Judgment Application for an easement of necessity over CSIC Services & Holding Ltd.’s (CSIC) property to complete the south exterior wall of the Roxy Theatre, which was being reconstructed after a fire.
The remaining construction work included removal of formwork, waterproofing, insulation, and cladding installation.
TN claimed it could not complete the work without accessing CSIC’s land at grade level, roof level, and airspace above.
CSIC cross-applied for Summary Dismissal of TN’s claim.
Legal Findings:
An easement of necessity requires absolute necessity, not mere inconvenience (Nelson v 1153696 Alberta Ltd., 2011 ABCA 203).
Necessity cannot be self-created (Condominium Plan No. 7810477 v Condominium Plan No. 7711723, 1997 CanLII 14869).
TN had alternative access from 124 Street (east) and a rear lane (west).
The building’s design created the need for access, despite TN knowing CSIC had not granted consent.
The theatre had been operational for years, and no structural issues were found in a 2023 engineer’s report.
The City of Edmonton had issued an occupancy certificate, refuting serious safety concerns.
Decision:
TN’s claim was dismissed; CSIC’s Summary Dismissal was granted.
Costs awarded to CSIC for both applications. Exact amount was nbot specified.
